National Aids Trust v NHS England – Public Health and the Interpretation of Statute

The Court of Appeal judgment in R (National Aids Trust) v NHS England is concerned with the allocation of responsibility for funding certain types of HIV treatment on the NHS.

At its narrowest, the case addresses the specific (though important) question of whether the power to fund prophylactic medicine for HIV lies with local authorities or with the NHS Commissioning Board (NHS England).

More generally, it serves as an unflattering critique of the legislation which underpins the allocation of roles and responsibilities within the health service.

And, at its widest, it adds usefully to the case law on how to understand the vires of a public authority when it lies within a badly-drafted, and hard to interpret, statutory regime.

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Can a Public Body Challenge its own Delegate?

A single interesting point of law emerges from the High Court judgment in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v St George’s Hospital Managers, summarised by the judge, Mr Justice Cranston, as concerning ‘the capacity of a body to seek judicial review of a decision which it could have made itself‘.

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Understanding Parliamentary Purpose – Rights of Women, Statutory Interpretation and the Constitution

Civil legal aid is now available in such a limited category of cases that most practising lawyers will rarely (if ever) encounter it. So there is a risk that the interesting constitutional issue at the heart of the recent judgment in Rights of Women v The Lord Chancellor will fail to get the recognition it deserves.

In that case, the Court of Appeal declared unlawful a set of regulations that would have significantly limited the ability of victims of domestic violence to obtain legal aid. This briefly made the news headlines, before being displaced by the even bigger legal story of the same day, the Supreme Court’s conclusion (in Jogee) that the courts had been misapplying the law on criminal joint enterprise for the past thirty years.

However, aside from the importance of its impact in domestic abuse cases, Rights of Women is worth a second look because of its wider interest to anyone involved in making, relying on, or seeking to challenge delegated legislation.

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Four Short Points on Interpretation

The rules of interpretation in public law, though apparently of little interest to academic lawyers, and never taught in law schools, are fundamental to the day-to-day work of anyone practising in the area.

This is not only because most public authorities operate within a statutory framework which must be properly understood if they are to act intra vires, but because they themselves generate huge volumes of written documents – orders, directions, regulations, consents, licences, authorisations, policies, approvals, determinations, guidance (and so on) – all of which fall to be interpreted within a public law context.

Because public law is, as Martin Loughlin of the LSE observes, ‘an autonomous discipline with its own distinctive methods and tasks’, its principles of interpretation differ in important respects from those applying to private law documents. In two cases decided on the same day, the Supreme Court has emphasised four important elements of these principles.

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TfL v Uber – Transport, Regulation and Disruptive Technology

Technology develops rapidly. The law does not. In consequence, and with increasing frequency, new technology is being introduced into a legal environment that was not designed to accommodate it.

To what extent is the law self-adapting, addressing itself to technological solutions that could not even have been contemplated when it was originally written?

This was the question considered by the High Court in Transport for London v Uber London Ltd, a case which is interesting not only on its own facts, but also because it draws attention to how regulatory systems need to become more responsive in an era of rapid technological change.

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